VA Civil Procedure Flashcards
What is the standard of review for grant of a demurrer?
De novo–question of law
July 2013
Who may sign a pleading?
ONLY either a pro se litigant or at least one attorney of record in his individual name–any pleading shall be invalid unless signed by local counsel
* If not (e.g., if attorney from another jurisdiction), pleading is a nullity, and summary judgment should be sustained
July 2013
What is the standard for discoverable evidence?
Any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether the subject matter relates to a claim or defense
* Discoverability broader than admissibility
* VBBE: “As long as the requested discovery is reasonably calculated to lead to the discovery of admissible evidence, an objection on the ground that the information sought is inadmissible should be overruled”
July 2013
What are some possible arguments against a motion to compel arbitration? (very specific question)
- D has waived by failing to raise in answer and continuing to engage in substantial litigation for extended period of time in forum
- D sought affirmative relief through a Plea in Bar
- D sought discovery
- To force cost and expense of dispute in a forum without substantial connection is unfair and unconscionable
- To force P to arbitrate late into a case would prejudice her
July 2013
May a court impose sanctions on its own motion for the repeated filing of frivolous motions?
Yes
Feb 2014
When may a court impose sanctions for failure to supplement discovery responses?
After P has sought and obtained an order from the court compelling the party to supplement and the party has failed to comply
Feb 2014
What is the proper punishment for offensive arguments contained in a brief directed at the court?
Contempt not sanctions–also can bar lawyer from practicing in that judge’s court for egregious conduct
Feb 2014
When a party files its complaint in the wrong court what is the proper course of action?
The court must transfer the appeal to the correct court, where it will be considered as if filed there initially
Feb 2014
When must a juror be striken for cause?
If a juror is related to either party of the case, has any interest in the outcome of the case, or has any apparent bias or prejudice to the party
Feb 2014
If the court fails to strike a juror that should be stricken for cause, but the juror doesn’t sit, is the error harmless?
NO–the juror’s later removal through the use of a peremptory strike does not make the error harmless
Feb 2014
If a party does not object at trial, will the potential error be considered on appeal?
NO–appellate courts will not consider any issue raised for the first time on appeal
* Unless it applies the “ends of justice” exception, by which life or liberty is at stake
Feb 2014
What is a bill of review and when must it be filed?
Allows a party to seek review of a final decree in equity causes of action for up to 6 months after entry
* Without leave of court, can file to correct errors apparent on the face of the record
* With leave of court, a party can file based on new evidence: (1) discovered after conclusion of trial; (2) that would likely produce different result; (3) that is not cumulative; (4) that could not have been discovered before trial through reasonable diligence; and (5) that can be produced at the new trial
July 2015
What is required to obtain a permanent injunction?
Moving party must show: (1) he has been harmed; (2) there is no adequate legal remedy (i.e., money damages); (3) an injunction is practicable, feasible, and effective; (4) the balance of the hardships are in his favor; and (5) the opposing party has no equitable defenses
How can one properly effect service of process according to VA law?
Descending order:
(1) Personal service
(2) Substitute service (D’s usual abode, family member who resides there, 16+, explain purpose of papers)
(3) Posted service
July 2015
Who may appeal to circuit court from GDC?
Any party aggrieved by more than $20
Feb 2015
May a party offer new evidence in an appeal from GDC to circuit court?
Yes–trial is conducted de novo and evidence not offered in GDC may be admitted in CC
Feb 2015
When are depositions admissible as evidence in civil trials?
When lawyers for adverse party were present at deposition and: (1) witness is dead; (2) witness is greater than 100 miles from place of trial or out of state (unless absence procured by party offering deposition); (3) unavailable for some other reason
Feb 2015
When may requests for admission be used in a summary judgment motion?
When the requests for admission make no mention of a prior deposition and does not require that the party admit the deponent gave specific testimony
* IMPORTANT–cannot use deposition testimony in support of a motion for summary judgment
Feb 2015, July 2016
Where may a sheriff make service of process?
Within his jurisdiction and any other contiguous jurisdiction
February 2016
What are the limitations on service of process by a civilian?
Must be: (1) 18 years or older and (2) not a party or interested in the subject matter in controversy
February 2016
Who may process be served on with respect to a corporation?
Any officer, director, or registered agent
February 2016
If a personal injury lawsuit occurs on 12/26/13, and service of process occurs on Monday, 12/28/15, is service timely or has SOL run?
Service is timely because if SOL runs on a weekend, party has until next business day to file
* Note that day 1 for SOL purposes is the day after the injury occurs (here, 12/27/13 is when starts to run)
February 2016
Where is venue proper as to a corporation?
(1) Where cause of action arose; (2) where PPB is; (3) where registered office is located; (4) where D regularly conducts substantial business activity only if the case has some practical nexus with this place
February 2016
What must a party show in a motion to transfer venue?
(1) That venue is improper and (2) where venue would be proper
February 2016
When may a party increase their ad damnum in the event of an appeal from GDC to Circuit Court
When the defendant appeals, Circuit Court may permit P to amend complaint to seek amount in excess of jurisdictional limit of GDC
February 2016
When may a court accept late pleadings?
Discretionary in the sound judgment of the court, and will do so when there is good cause
Sept. 2020
What must the moving party show to be awarded a temporary injunction?
(1) The TI would preserve the status quo and avoid irreperable harm
(2) There is not an adequate remedy at law
(3) There’s a likelihood of success on the merits
(4) That the balance of equities is in moving party’s favor
Feb 2016
After the grant of a temporary injunction, what will the court require before the relief becomes effective?
Furnish a bond in sufficient amount
* Ensures that if the other party wins at trial, they will be adequately compensated for their damages from the injunction
Feb 2016
If a party is in default on the issue of liability in a personal injury action, what may they do at trial on the issue of damages?
(1) Object to P’s evidence regarding damages
(2) Offer their own evidence regarding damages (e.g., evidence of injuries from previous accident)
Feb 2017
What is the effect of default judgment on contributory negligence of the non-defaulting party?
When a party is in default, they admit liability and concede the other party is free of contributory negligence
Feb 2017
How must a minor sue and what is the correct case caption?
Can only sue through next of friend until they are 18
* Caption example–Patty Lane, a minor, who sues by her next friend, Lucy Lane, Plaintiff v. Debbie Jones, Defendant
July 2018
What is unique about the statute of limitations with respect to a minor?
It is tolled until the age of majority is reached
July 2018
What are the three situations that will cut off P’s right to take a nonsuit?
(1) A motion to strike the evidence has been sustained
(2) The jury retires from the bar
(3) The action has been submitted to the court for decision
What is the appropriate action to file to conclusively resolve multiple claims of ownership to property?
An interpleader action naming all interested parties as defendants
Feb 2018
When is it appropriate to grant a motion to strike the evidence?
(1) The nonmoving party has been fully heard and (2) no reasonable jury could find for the nonmoving party
July 2019
What are the requirements and purpose of a demurrer?
Asked verbatim in July 2019
Purpose–challenge legal sufficiency of a pleading
Requirements:
* In CC, must be filed in writing, within 21 days of service of process unless trial judge grants leave for additional time
* Must state specific grounds (not just “failure to plead cause of action”)
* Judge may only look to face of P’s pleading in ruling on demurrer
July 2019
What is the time requirement to file a notice of appeal from a case decided in GDC?
Must file notice of appeal with GDC where judgment entered within 10 days of the judgment
* If tenth day falls on a weekend, may file the notice the following Monday
Feb 2019
How must objections be stated?
With SPECIFICITY (if grounds aren’t stated, objection waived)–simply saying “general error” not enough
Feb 2019
May a party orally move to amend their complaint?
Yes–consistent with idea that “leave to amend is discretionary and to be liberally granted to attain the ends of justice”
* Specifically mentions that parties have ability to make oral motion to amend
In what manner may a defendant raise the statute of limitations as a defense?
Through a responsive pleading (answer or plea in bar)
* Must be raised within 21 days
* Cannot be raised by demurrer
July 2020
What types of affirmative defenses must be raised in a responsive pleading?
Those that are dispositive of the action (e.g., SOL BUT NOT failure to mitigate)
What is the proper motion if a defendant believes he is an improper defendant in the action?
A plea for misjoinder and, if successful, case will proceed against other defendants
* “Motion to drop improperly joined party”
HOW DO YOU PERFECT AN APPEAL FROM CC?
(1) File notice of appeal with Circuit Court within 30 days of final judgment and give notice to opposing counsel
(2) File copy of the notice of appeal with clerk of the Court of Appeals along with filing fee
(3) Note whether a transcript will be filed, which, if so, must be done within 60 days
(4) Once the trial record has been recevied by COA, submit opening brief within 40 days
How long do you have to appeal a judgment from GDC, and what is your remedy if you miss it?
10 days, but can seek re-open no later than 30 days after entry of judgment, which court must rule on no later than 45 days after the etnry of jdugment
* Court can vacate judgment on the ground of fraud for up to 2 years
How must a deceased person’s estate sue and what is the correct case caption?
Through a personal representative
* Caption example – Brenda Coleman, personal representative of the estate of Cody Coleman v. Togo Ticketing
What is the legal effect of filing suit in the wrong name (e.g., not through personal representative on behalf of an estate)?
It is a legal nullity tantamount to no filing (SO SOL CONTINUES TO RUN)
How long does a party have to respond to a request for admission and what is consequence of failure to do so?
21 days and failure to do so means the matter is conclusively established as admission unless court permits withdrawal or amendment of admission
What is a lis pendens and when should it be filed?
A notice that a suit concerning title to property is pending
* Should be filed when there is a pending suit, the outcome of which can affect title to the property
